NO. 84-467 

IN' THE SUPREm COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID RODNEY WARNICK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Madden, Knuchel & McGregor; Dan McGregor, Livingston, 

Montana 

For Respondent: 

Ron. Mike Greely, Attorney General, Helena, Montana 

W. Nels Swandal, County Attorney, Livingston, 

Montana 

Submitted on Briefs: Feb. 28, 1985 

~ecided: May 13, 1985 

Lfiji, a . &; 3 

Filed: 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The District Court of the Sixth Judicial District, Park 

County, denied David Rodney Warnick's motion for a 

continuance of trial and he was convicted of felony theft. 

Warnick appeals the conviction on the grounds that the 

District Court's denial of the continuance was an abuse of 

discretion that deprived him of due process and a fair trial. 

On April 6, 1984, a burglary occurred at the Sterling 

Hotel in Park County. On April 9, 1984, relying on a tip, 

the police recovered the stolen property in a green duffle 

bag with the name "Victor Warnick" on it. Victor Warnick was 

contacted and stated he had given the bag to David Rodney 

Warnick. A pawn shop operator contacted by the police stated 

that on April 6, 1984 David Rodney Warnick approached him 

about selling some jewelry. Rased on this and on a telephone 

call from a Theresa Clemons to a Park County Deputy Sheriff, 

Warnick was arrested. He was arraigned on a charge of felony 

theft on May 21 , 1984 and a public defender was appointed. 

Trial was set for July 23, 1984. On July 17, 1984 at an 

omnibus hearing, the trial date was changed to August 2, 

1984. The District Court suggested August I-, 1984 but both 

attorneys would be out of the county on that date. A hearing 

on Warnick's motions for change of venue and disclosure of 

informants' names was scheduled for July 25, 1984. 

On July 25, 1984, the District Court denied the motion 

to change venue and granted Warnick's motion for disclosure 

of the informants' names. This was an oral order that was 

reduced to writing on July 26, 1984. The names of the 

informants were not revealed to the defense attorney until 
late on July 30, 1984. The reason for the delay is not 

clear. Apparently the county attorney was out of town when 

the order was made and the sheriff and police department were 

relu.ctant to comply with the order. Nels Swandal, Park 

County Attorney, told the District Court: 

"THE COURT: So that the record may be straight, 

Mr. Swandal, would it be correct the reservation or 

hesitancy about d.isclosing the names of these two 

people hasn't been through the County Attorney's 

office but rather the Sheriff's office. 

"MR. SVJANDAL : The Sheriff and the Police 

Department, your Honor. Frankly, the one that I 

disclosed yesterday, I don't think there should 

have been any hesitancy because he wasn't involved 

in any sort of informant or confidential informant 

tape situation. He was never promised that. The 

other one was in the State of Washington until 

today, and we couldn't get her here. And the 

Police and I had a round concerning whether she 

would be disclosed or not. And I have talked to 

her and she is willing to do an interview." 

On July 31, 1984, after talking with Stan Marchington, 

one of the discl-osed witnesses, appellant's attorney moved 

for a continuance because of the delay in disclosing the 

informants' names. The motion was denied. The case came to 

trial on August 2, 1984 and Warnick was convicted.. 

Stan Marchington was called as a witness. He was not an 

informant, having never contacted the police about this 

matter. Theresa Clemons, the informant who contacted the 

police, did not testify. Marchington testified. that Clemons 

was sitting with him while he was playing cards in a 

Livingston bar when Warnick approached her. Marchington 

testified that she told him Warnick wanted to sell her 

something. She wanted Marchington to accompany her and he 

complied. Marchington, Clemons, and Warnick went in Clemons' 

car to Warnick's brother's home. Marchington testified that 

Warnick left the car, went into his brother's garage, and 

returned carrying a duffel bag. He showed Marchington and 
Clemons a "bunch of coins." Marchington testified that 

Warnick said he had stolen the items from Chester Johnson's 

safe and he now wanted to sell it to them. According to 

Marchington, they declined the offer and returned to the 

Sterling Hotel. 

At the Sterlj-ng, according to Marchington' s testimony, 

Warnick left the bag in Clemons' car. Clemons and 

Marchington urged him to take it but he refused, saying he 

was tired of it. Clemons and Marchington then drove from 

Livingston to Emigrant where they buried the bag. 

What happened next appears in the record of the hearing 

on the motion for discl.osure of informants. Bradford Wilson, 

a Park County Deputy Sheriff, testified that Theresa Clemons 

called him on April 9, 1984 because they were acquainted. He 

testified that she was frightened and wanted to know what to 

do with the stolen property. She told him where the bag was 

buried and he recovered it. The officer testified that 

although the police obtained the arrest warrant after talking 

to Clemons, Warnick was already their suspect. 

The issue on appeal is whether the District Court abused 

its discretion in denying the continuance motion when, with 

trial set for August 2, the informants' names were not 

revealed to his attorney until late July 30 and the County 

Attorney knew appellant's attorney would be out of the county 

August 1. We agree with appellant that the Park County 

Attorney's office and the Park County Sheriff and Police 

acted improperly in refusing to comply with the District 

Court's ord.er to disclose the informants' names. Rut in this 

case we find this harmless error and agree with the District 

Court that it was not grounds for granting a continuance. 
Section 46-13-202, MCA, is the applicable statute on 

continua.nce . It states in part, "(3) All motions for 

continuance are addressed to the discretion of the trial 

court and shall be considered in the light of the diligence 

shown on the part of the movant." In State v. Paulson 

(1975) , 167 Mont. 310, 315, 538 P. 2d 339, 342, we expressed 

the standard to be applied on appellate review of a motion 

for continuance: 

"Motions for continua.nce are addressed to the 

discretion of the trial court and the granting of a 

continuance has never been a matter of right . . . The district court cannot be overturned on appeal 

in absence of a showing of prejudice to the 

movant. " 

Counsel for Warnick should have been told the 

informants' names immediately after the judge's order. 

Warnick has clearly established error but there is no 

prejudice. The interview of Marchington on July 31, 1984 

provided no information supporting Warnick's innocence. 

Appellant has not established how receiving the names on July 

25 instead of July 30 wou1.d have changed the result of the 

trial. Reviewing the record. of the testimony of Marchington 

and Bradford Wilson we find nothing exculpatory. Appellant 

has established a serious disregard of a court order by the 

County Attorney and the law enforcement agency but no harm. 

The principle that harmless error on the part of the 

trial judge is not grounds for reversal is well established. 

We agree that harmless error is not grounds for a continuance 

of the trial. In Chapman v. State of California (1966), 386 

U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705, 709, the United. 

States Supreme Court declined to rule that all federal 

constitutional violations are harmful error. The Court 

upheld state and federal harmless error statutes and rules 
stating "[all1 of these rules, state or federal, serve a very 

useful purpose insofar as they block setting aside 

convictions for small errors or defects that have little, if 

any, likelihood of having changed the results of the trial." 

The Court went on to hold that before an error may be held 

harmless the reviewing court must be able to state its belief 

that the error is harmless beyond a reasonable doubt. This 

Court has followed the harmless error rule. See, for 

example, State v. Sandstrom (19791, 184 Mont. 391, 393, 603 

P.2d 244, 245, where this Court held that because an error in 

iury instructions was not ha.rmless the case had to be 

retried. 

The harmless error rule is also cod-ified. Section 

46-20-701, MCA, states: 

". . . No cause shall be reversed by reason of any 

error committed by the trial court a.gainst the 

appellant unless the record shows that the error 

was preiudicial." 

and Rule 14 of the Montana Rules of Appellate Civil 

Procedure: 

". . . And no cause shall be reversed upon appeal 

by reason of any error committed by the trial court 

against the appellant, where the record shows that 

the same result would have been attained had such 

trial court not committed an error or errors 

against the respondent." 

In this case the District Court did not abuse its 

discretion in denying the continuance because, although it 

was a serious matter for the State to withhold the 

informants' names until two days before trial, no prejudice 

is demonstrated. The record shows beyond a reasonable doubt 

that the delay in providing Warnick with the informants' 

names was harmless because the informants could provide 

nothing that would refute the State's case. In addition, 

although Clemons was an informant, Warnick can hardly claim 
she was an unknown informant. This is not a case where the 

defendant is being denied the opportunity to confront his 

accusers because they are unknown to him. Although he may 

have been unaware that Cl-emons and Karchington were the 

informants, he had personal knowledge that they were involved 

in the activities of the evening and could have sought them 

out. 

It should be noted that this Court does not condone 

withholding names after the District Court ordered. the State 

to disclose the names of informants. The judge's order was 

dispositive of this matter. The constable as well as the 

County Attorney must obey that order; their "concerns" or 

"hesitancies" are irrelevant. We call to the State's 

attention Ethical Consideration 7-13 of the Model Code of 

Professional Responsibility. 

"EC 7-1.3 The responsibility of public prosecutor 

differs from that of the usual advocate: his dutv --A 

--- is to seek justice, not merely to convict. This 

special duty exists because: (1F the prosecutor 

represents the sovereign and therefore should use 

restraint in the discretionary exercise of 

governmental powers, such as in the selection of 

cases to prosecute; (2) during trial the 

prosecutor is not only an advocate but he also may 

make decisions normally made by an individual 

client, and those affecting the public interest 

should be fair to all; and (3) -- in our system of 

criminal justice the accused - is - to - be en the 

benefit -- of all reasonable doubts. With respect to 

evidence and witnesses, the prosecutor has 

responsibil-ities different from those of a lawyer 

in private practice: the prosecutor should make 

timely disclosure to the defense of available 

evidence, known to him, that tends to negate the 

guilt of the accused, mitigate the degree of the 

offense, or reduce the punishment. Further, a 

prosecutor should not intentional-ly avoid pursuit 

of evidence merely because he believes it will 

damage the prosecutor's case or aid the accused. 

(Emphasis added.) 

We affirm the District Court's denial of a continuance 

because appellant has not shown prejudice but we in no way 

condone the actions of the law enforcement agencies or the 
County Attorney. The judgment of the District Court is 

af firmed. 

' 1 

, f 

Justice I 

We Concur: 

4 A .- /-a 

ief Justice